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Conclusion

The Tribunal faces a critical situation. If the defendants’ chosen counsel continue to refuse to appear in court, the Tribunal might well conclude that the lawyers are seeking to obstruct the proceedings and take disciplinary action against them. However, firing a defendants’ chosen counsel should be a last resort and cannot be allowed to jeopardize the fairness of the proceedings. Sanctions short of dismissal need to be explored.

If the Tribunal does dismiss the defendants’ lawyers, each defendant must be given a chance to nominate new counsel of their own choosing. Should they reject any other lawyers, including court-appointed lawyers, the Tribunal – acting in the “interests of justice” – can appoint lawyers against the defendants’ will, but the court then takes on a new burden: it must superintend the competence and diligence of the lawyers, to ensure that the defendants’ fair trial guarantees are protected. The Tribunal also has to make sure that any new lawyers have adequate time to prepare their cases – even though this could result in delays.

A trial without a vigorous and properly prepared defense will not only violate basic fair trial guarantees; it will look like a sham. In the insecurity and political uncertainty that characterizes Iraq at the moment, the Iraqi High Tribunal cannot afford an unfair trial, nor even the perception of it, if it is to redeem its promise to provide justice and not vengeance.